THE CASE FOR ENVIRONMENTAL MEDIATION

By Allan R. Talbot

It's pretty obvious to anyone who watches television or reads newspapers that we live in a quarrelsome society . . . a culture that seems intent upon adding an eleventh commandment, "Thou shalt sue thy neighbor, whenever possible", to its liturgy. Still, in many instances, particularly when environmental issues are contested, there simply haven't been any alternatives to the use of the court system. Unfortunately, asking judges to settle environmental conflicts all too often seems to lead to crowded court calendars, pyramiding attorney fees, and results that fail to resolve-or even address the real problems involved.

In recent years, however, mediation which has long been accepted as a means of resolving labor/management disputes-has begun to be used in environmental confrontations . . . and has shown some promising results. As you likely know, the settlement technique involves allowing a neutral third party to meet with the opposing sides, separately and jointly, in order to help each to understand the other's objectives . . to point out areas of agreement . . . and to encourage the opponents to resolve their differences by means of compromise and negotiation.

SUCCESS STORIES

One of the most dramatic demonstrations of the potential of environmental mediation took place in December of 1980, when rep resentatives of three private utilities, several public agencies, and two environmental groups were able to settle their long-lasting dispute over the use of New York's Hudson River for power production. At the heart of the controversy was the Consolidated Edison Company of New York's plan to construct an immense hydroelectric plant on Storm King Mountain, in the Hudson highlands.

This particular case could serve as a textbook example of the limitations and frustrations that can result from seeking a court remedy. Consolidated Edison had been attempting to license the plant since 1962, with constant opposition from activist groups who objected first on aesthetic grounds (the proposed plant would mar the area's scenic beauty) . . . and later because of concern that the installation might harm aquatic life; pollute the adjacent water table, and perhaps even trigger earthquakes!

Over the years, the citizens against the plant waged a broad legal attack. In the course of the struggle, judges and other officials were called upon to rule on a continuing series of questions, such as whether or not the review and licensing agencies had followed the law . . . examined the available evidence ... and built up adequate information to support their decisions favoring construction of the plant. These proceedings resulted in a total of some $6 million in legal fees, yet never yielded a final decision as to whether or not the generating facility should be built!

The frustration and apparent futility of the nearly 20-year-old struggle finally encouraged both sides to try-in 1979-to negotiate a settlement. The mediator chosen was Russell Train, president of the World Wildlife Fund. Train spent approximately a year and a half meeting with the opposing patties, in full session and in small committees, and was finally able to hammer out an agreement.

The central point of conflict had through the years-become the question of the cumulative effect of all recently built (or proposed) Hudson River power plants on the aquatic life found in the waterway. The compromise solution, then, included Consolidated Edison's commitment to abandon the Storm King project . . . and an agreement on the part of the environmental groups involved to drop their demands that utilities construct cooling towers at other plant sites. (Those additions would have cost the power companies approximately $500 million to build . . . and $180 million, annually, to operate.) The utilities also agreed to finance a research program to measure the long-term effects of power production on the river's ecology.

While the opposing groups involved in the Hudson River case were able to see that their legal war was likely endless, and to decide, themselves, to seek a negotiated solution, mediation is far more typically prompted (or ordered) by an outsider . . . usually a government agency or official. For example, in July 1975 Washington's Governor Dan Evans induced that state's legislature to pass a bill requiring the councils of Seattle, Mercer Island, Bellevue County, and King County to vote on a proposed extension of Interstate 90, one that-if built would pass through all four districts. Yet, while people in and around Seattle had been arguing for and against the planned road since it was first proposed back in 1964, the bill gave the localities only six months to make up their minds. In short, Governor Evans' ultimatum set the stage for a compromise solution.

Two mediators were assigned to the case, and the pair proceeded to spend their first three months simply preparing themselves and the participants for the bargaining process. This involved (among other things) convincing everyone in question that the negotiators were-in fact-impartial, and determining the real objectives of the opposing groups . . . all in order to see if a settlement might be possible. Once that groundwork was completed, the mediators worked with representatives of each jurisdiction to come up with a route proposal that would satisfy every region's basic goals. The state highway department then helped incorporate those ideas into a final plan. The concluded agreement has since withstood one legal challenge, and the road is now under construction.

Another instance where some sort of deadline served as the catalyst to mediation occurred in Port Townsend, Washington. Numerous factions of local citizens there were involved in a seemingly inconclusive argument about the best location for a much-needed new ferry terminal. However, when the townsfolk learned that-unless they reached an agreement soon-the state would give the necessary construction money to another project entirely, they decided to seek mediation. Within two and a half months, the differing parties reached a compromise.

At its best, mediation can even defuse potentially dangerous situations. Take, for example, the story of a particularly bitter dispute between a small-scale hydropower developer and a lakefront town in Maine. It seems the individual wanted to draw upon water levels in the lake for the purpose of power production, but the town had denied him permission. The conflict drew national attention when, in January of 1979, an unidentified vandal set off a firebomb at the wooden gates of the developer's dam. That violent incident persuaded the governor to ask a mediator to step in . . . just as the town was planning to challenge the individual's operating license in a hearing before the Federal Energy Regulatory Commission. The town's lawyer, knowing that a protracted legal action could put a serious strain on the municipal budget, was able (with the encouragement of the FERC) to convince his clients to try mediation first. Over a three month period, the negotiator who tackled the case helped both sides agree upon exactly when, and how much, the developer could draw upon the lake for his hydropower system. These terms were then written into the operating license that was provided him by the town.

A particularly "touchy" dispute pitted the What com County Park Board against the Washington state Lummi Indian tribe. The issue in this case concerned the future use of Portage Island . . . which the Lummi had sold to the board in 1965, and which Whatcom County planned to transform into a public park. In 1970, however, members of the tribe began patrolling the island -which is located in Bellingham Bay with in the Lummi reservation in order to prevent non-Indians from using the site. The Park Board protested, appealed to the Department of the Interior, and was ready to take its case before federal court. Beginning in the fall of 1978, however, a pair of mediators was able to unravel the problem: The park board agreed to sell the island back to the Lummi . . . with the understanding that the tribe itself would then maintain the site as a public park!

LOOKING AT THE LIMITATIONS

Although mediation has resulted in the resolution of a goodly number of environmental battles, it is by no means a panacea. In fact, an experienced negotiator named Howard Bellman estimates that as few as 10% of all environmental conflicts actually lend themselves to mediation. Bellman feels (and he's not alone) that the technique becomes useful only when a dispute matures to the point where the issues at question are clearly defined . . and when the parties acknowledge that they're facing a standoff They recognize each other's power and realize that no solution will be possible without some negotiation. This "perfect conflict", of course, is quite common with clear-cut labor/management disputes, but the structure of environmental controversies is generally a good bit more complex. There are typically more than two parties and opinions involved, for example, and the issues are often not based so much upon dollars and cents as upon conflicting notions about how basic decisions affecting the use of natural resources should be made!

And unfortunately, some such disputes simply cannot ever be mediated. The establishment of a nuclear power plant or offshore drilling rig, for example, will likely be opposed by groups that are fighting on ideological grounds and have no interest in compromise.

FUTURE TALK

Environmental mediation-which is still in its infancy-has thus far been treated as an experimental technique and has survived through the support of such groups as the Ford, Rockefeller, Atlantic Richfield, Hewlett, and Mellon foundations. Funds from these sources are being withdrawn, however, now that the "experiment" has been completed . . . so it's time for mediation to become self-supporting.

Fortunately, the problem-solving method isn't terribly expensive. The actual mediation costs for the cases I've described ranged from $3,000 to about $30,000 (either of which would seem like a bargain compared with the expense of lengthy litigation). Whether, in the future, negotiators will charge clients for their services or rely on governmental support-or both-remains to be seen.

What is clear, though, is that, under the right circumstances and conditions, the process works.

EDITOR'S NOTE: Allan R. Talbot's book on this topic-Settling Things: Six Case Studies in Environmental Mediation -is available for $8.50 plus $2.00 shipping and handling from the Conservation Foundation, Dept. TMEN, 1717 Massachusetts Avenue N. W., Washington, D. C. 20036.

Two of the most prominent national groups in this field are the Institute for Environmental Mediation, Dept. TMEN, 3318 Queen Anne Avenue, North Seattle, Washington 36109 . . . and the New England Environmental Mediation Center, Dept. TMEN, 190 High Street, Boston, Massachusetts 02110.